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It’s the PCBU’s “duty to consult”

As a provider of Workplace Health and Safety training and consulting we routinely hear from hundreds of people from companies and government bodies about the Work Health and Safety programs and activities they are working on in order to improve productivity and the health and safety of their workers.

So we regularly hear about what they have done and are doing to improve their compliance with WHS law.

In the year just gone we heard a number of stories about the very good work that SafeWork NSW did throughout 2017 to help organisations become more aligned with WHS law, and in particular, on the subject of consultation compliance. This was quite a focus for SafeWork NSW in 2017. That focus will continue because consultation and communication with workers is a key element in the health and safety landscape that SafeWork NSW aims to embed in all NSW workplaces.

From all of this we have put together some basic information below which we hope you will find interesting and useful in supporting the WHS compliance requirements of your workplace.

In NSW the Person Conducting a Business or Undertaking (PCBU) has a mandatory duty to consult with workers on matters of health and safety. This is covered in Sections 47 to 49 of the WHS Act 2011.

Further, Section 70 of the Act describes the specific activities and matters a PCBU must discuss and be involved with via the Health and Safety Representatives (HSR) when workers are represented by an HSR.

Many workplaces have a Health and Safety Committee (HSC) and if a workplace also has HSRs then those HSRs are often members of the HSC. Under WHS legislation the functions of the HSC are quite broad. An HSC may deal with matters such as WHS policy, programs and plans, safety and maintenance of plant and machinery, signage, audits, real estate and premises, and address or liaise with the WHS needs of other branches in other locations, etc. Often these are project-based activities that address whole workplaces and premises.

In addition to its broader functions and projects, a Health & Safety Committee may be used to carry out the functions that would otherwise be performed by an HSR or are agreed to.

In larger organisations it would be impractical for the PCBU to walk around the workplace, going from workgroup to workgroup and talking to the HSRs of each about issues within their workgroups. The PCBU might not otherwise get much of his or her own managerial work done! Some workplaces have multiple sites. How would that work?

A PCBU can utilize the health and safety committee to assist with his or her duty to consult via the “management representatives” of the HSC. The “worker representatives” of an HSC are often some or all of the HSRs. In fact, under the WHS Act, an HSR is automatically a member of the HSC unless they request not to be. HSRs who are also committee members will therefore be involved in the workplace projects and activities of the committee as well as any issues of their own workgroups.

The Health & Safety Committee can be a effective forum to assist with the PCBU’s duty to consult, but it is not a replacement for the PCBU’s duty to consult. In other words, it is not the Committee’s duty to consult. It is the PCBU’s. That is law.

Whether a business has a Health and Safety Committee, HSRs, or another arrangement, the PCBU’s duty to consult with workers on matters of health and safety is a mandatory requirement and has to occur.

During 2017 various organisations told us that a SafeWork NSW Inspector had been in their workplace and asked for evidence that the PCBU was consulting with workers. Some workplaces were unable to provide evidence that satisfied the Inspector.

It is not the Committee’s “duty to consult.”

It is not the HSR’s “duty to consult.”

It is the PCBU’s duty to consult.

If the consultation process is taking place in your workplace, and it can be documented and proven, then your workplace is well on the way to being compliant with basic WHS consultation law.